Europe's “unitary patent” could mean unlimited
software patents

Just as the US software industry is experiencing the
long anticipated all-out software patent wars that we have
anticipated, the European Union has a plan to follow the same course.
When the Hargreaves report urged the UK to avoid software patents, the
UK had already approved plan that is likely to impose them on UK.

Software patents are dangerous to software developers because they
impose monopolies on software ideas. It is not feasible or safe to
develop nontrivial software if you must thread a maze of patents. See
“Software Patents and Literary Patents”, Guardian, June 20,
2005.

Every program combines many ideas; a large program implements thousands
of them. Google recently estimated there might
be 250,000 patented ideas in a smartphone. I find that figure
plausible because in 2004 I estimated that the GNU/Linux operating
system implemented around 100,000 actually patented ideas. (Linux, the
kernel, had been found by Dan Ravicher to contain 283 such ideas, and
was estimated to be .25% of the whole system at the time.)

The consequences are becoming manifest now in the US, but multinational
companies have long lobbied to spread software patents around the world.
In 2005, the European Parliament took up the second reading of a
directive that had been proposed by the European Commission to authorize
software patents. The Parliament had previously amended it to reject
them, but the Council of Europe had undone those amendments.

The Commission's text was written in a sneaky way: when read by
laymen, it appeared to forbid patents on pure software ideas, because it
required a patent application to have a physical aspect. However, it
did not require the “inventive step”, the advance that
constitutes a patentable “invention”, to be physical.

This meant that a patent application could present the required physical
aspect just by mentioning the usual physical elements of the computer on
which the program would run (processor, memory, display, etc.). It
would not have to propose any advance in these physical elements, just
cite them as part of the larger system also containing the software.
Any computational idea could be patented this way. Such a patent would
only cover software meant for running on a computer, but that was not
much of a limitation, since it is not practical to run a large program
by hand simulation.

A massive grass-roots effort—the first one ever directed at
convincing the European Parliament—resulted in defeat of the
directive. But that does not mean we convinced half of Parliament to
reject software patents. Rather, it seems the pro-patent forces decided
at the last minute to junk their own proposal.

The volunteer activists drifted away, thinking the battle won, but the
corporate lobbyists for software patents were paid to stay on the job.
Now they have contrived another sneaky method: the “unitary
patent” system proposed for the EU. Under this system, if the
European Patent Office issues a patent, it will automatically be valid
in every participating country, which in this case means all of the EU
except for Spain and Italy.

How would that affect software patents? Evidently, either the unitary
patent system would allow software patents or it wouldn't. If it
allows them, no country will be able to escape them on its own. That
would be bad, but what if the system rejects software patents? Then it
would be good—right?

Right—except the plan was designed to prevent that. A small but
crucial detail in the plan is that appeals against the EPO's
decisions would be decided based on the EPO's own rules. The EPO
could thus tie European business and computer users in knots to its
heart's content.

The EPO has a vested interest in extending patents into as many areas of
life as it can get away with. With external limits (such as national
courts) removed, the EPO could impose software patents, or any other
controversial kind of patents. For instance, if it chooses to decide
that natural genes are patentable, as a
US appeals court just did, no one could reverse that decision except
perhaps the European Court of Justice.

In fact, the EPO's decision about software patents has already
been made, and can be seen in action. The EPO has issued tens of
thousands of software patents, in contempt for the treaty that
established it. (See “Your web
shop is patented”.) At present, though, each state decides
whether those patents are valid. If the unitary patent system is adopted
and the EPO gets unchecked power to decide, Europe will get US-style
patent wars.

The European Court of Justice ruled in March that a unitary patent
system would have to be subject to its jurisdiction, but it isn't
clear whether its jurisdiction would include substantive policy
decisions such as “can software ideas be patented?”
That's because it's not clear how the European Patent
Convention relates to the ECJ.

If the ECJ can decide this, the plan would no longer be certain
disaster. Instead, the ball would be one bounce away from disaster.
Before adopting such a system, Europe should rewrite the plan to make
certain software is safe from patents. If that can't be done, the
next best thing is to reject the plan entirely. Minor simplifications
are not worth a disaster; harmonization is a misguided goal if it means
doing things wrong everywhere.

The UK government seems to wish for the disaster, since it stated in
December 2010 [archived] that it wanted the ECJ not have a say over the system.
Will the government listen to Hargreaves and change its mind about this
plan? Britons must insist on this.

More information about the drawbacks and legal flaws of this plan can be
found in unitary-patent.eu.

You will note that the term “intellectual property” has not
been used in this article. That term spreads confusion because it is
applied to a dozen unrelated laws. Even if we consider just patent law
and copyright law, they are so different in their requirements and
effects that generalizing about the two is a mistake. Absolutely
nothing in this article pertains to copyright law. To avoid leading
people to generalize about disparate laws, I never use the term
“intellectual property”, and I never miss it either.